This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
By statute in a large number of states, the rule in Shelley's Case has been abolished, and, where this is the case, the ancestor will ordinarily take a life estate with a contingent remainder to his heirs.79 In a few states it remains in full
B. Mon. (Ky.) 245; Bucklin v. Creighton, 18 R. I. 325, 27 Atl. 226; Shaw v. Robinson, 42 S. C. 342, 20 S. E. 161. See note 23 Harv. Law Rev. at p. 488.
76. 2 Jarman, Wills, 1179; Fearne, Cont. Rem. 490; Taylor v. Lindsay, 14 R. I. 518. In Hughes v. Nicklas, 70 Md. 484, 14 Am. St. Rep. 377, 17 Atl. 398; Hampton v. Rather, 30 Miss. 193, and Polk v. Faris, 9 Yerg. (Tenn.) 209, 30 Am. Dec. 400, while the application of this analogous rule to chattel interests is recognized, it does not seem to be considered that the intent of the party will affect such application,-that is, it is considered an absolute rule of law, as in the case of freehold interests, and not one of construction.
77. Co. Litt. 54b; Webb. v. Sadler, 8 Ch. App. 419; Theobald, Wills (5th Ed.) 461.
78. See the cases collected in 29 L. R. A. (N. S.) at p. 1146 et seq. And Editorial notes in 8 Columbia Law Rev. at p. 573, 23 Harv. Law Rev. at p. 51.
79. See 29 L. R. A. (N. S.) at p. 1148 et seg.
As to the expediency of abolishing the rule, there are conflicting opinions, but it seems proper to note that the objection usually made to the rule, that it defeats
[Sec. 155 force,80 though a remainder to the heirs of the body of the first taker will, where estates tail are changed into estates in fee simple,81 or otherwise modified,82 create, not an estate tail, hut an estate or estates of the modified character.
A statute abolishing the rule can obviously not affect its operations as applied to a conveyance or devise which took effect before the enactment of the statute.83 the Intention of the testator or grantor who created the limitations is not conclusive in favor of its abolition, since the same objection might be made to the rule against perpetuities, and to the statutes modifying and abolishing estates tail. In fact this objection to the rule, thus stated, appears to involve the erroneous view of the rule as one of construction. The question properly is whether public policy renders the abrogation of the rule desirable, and in deciding this question the fact that it may, and usually does, defeat the intention is to be considered. On the other hand is to be considered the fact that the rule does, as stated by Sir Wm. Blackstone, tend to throw the land into commerce one generation sooner, and this is in accord with modern legislative and judicial policy. There seems, on the whole, no particular injustice in requiring one who desires to have his land pass to another for life, and after such other's death, to that indefinite class known as the "heirs" or "heirs of the body" of such other, to effect this by the creation of an estate in fee simple or in fee tail in the ancestor, of which the latter can freely dispose, and not by the creation of an estate for life, with a contingent remainder, not susceptible of alienation.
80. The American as well as English cases involving the application of the Rule are to be found most conveniently gathered and classified in a note to 29 L. R. A. (N. S.) at p. 963. Their number is legion.
81. Holt v. Pickett, 111 Ala. 362, 20 So. 432; Dickson v. Satter-field, 53 Md. 317; Fraser v. Chene, 2 Mich. 81; Chamblee v. Brough-ton, 120 N. C. 170, 27 S. E. 111; Shoup v. DeLong, 190 Pa. 331, 42 Atl. 680; Bramble v. Billups, 4 Leigh (Va.) 90.
82. But in Illinois it has been decided that, in view of the statute modifying estates in fee tail, the rule does not apply in the case of a conveyance to A for life, remainder to the heirs of the body of A, though it applies in the case of a remainder to heirs general. Dick v. Ricker, 222 111. 413, 78 N. E. 823; Winchell v. Winchell, 259 111. 471, 102 N. E. 823.
83. Wilson v. Alston, 122 Ala.
630, 25 So. 225; Wilkerson v.'Clark, it becomes an estate in reversion, subject to the life estate. The whole use of the fee simple which results to, or remains in, the grantor, is subject to be drawn out of him to the extent of the estates to be conferred by the limitations on their becoming vested.88
80 Ga. 367, 12 Am. St. Rep. 258,
7 S. E. 319; Quick v. Quick, 21 N.
V. Executory Interests.